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Politics and the Pulpit (Once Again)

By Stanley Fish October 5, 2008 6:35 pmOctober 5, 2008 6:35 pm

The story goes that when he was running for re-election to the Senate in 1954, Lyndon Johnson was opposed by a couple of non-profits that urged voters to reject him and his radical communist ideas. (And you thought things were crazy today.) In response, Johnson had new language inserted into the section of the I.R.S. code, which defines a tax exempt entity. His addendum declared that an exempt organization “does not participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.”

Now, in the middle of the 2008 election, several dozen pastors are challenging the amendment by speaking out in the pulpit in favor of a candidate (usually John McCain) and by sending the I.R.S. copies of the sermons in which they openly cross the line the law has drawn since 1954. At the same time, a bill (H.R. 2275) repealing the Johnson amendment has been introduced by Walter Jones, Republican of North Carolina. The bill has been referred to the House Ways and Means Committee where it awaits action.
The debate over Jones’s bill and Johnson’s amendment reveals once again how confusing and confused church-state jurisprudence is and has always been and will always be. Both sides claim that the other is violating the separation of church and state. Barry Lynn, a minister who is executive director of Americans United for Separation of Church and State, argues that “We just can’t have sermons converted into political advertisements for candidates,” and he warns against using “church collection plate money on an ad telling people” to vote for one candidate rather than another.

Lynn here follows in the tradition of John Locke’s Letter Concerning Toleration, a tract in which Locke declares that the civil magistrate has no warrant to meddle in the affairs of the church, and churches, on their part, have no warrant to meddle in the affairs of state. The church, says Locke, tends to men’s souls; the state to men’s worldly needs. (He also says that in the event of a clash between them, the state’s interests must prevail; but that’s another essay.)

But the logic and force of Locke’s arguments depend upon his conceiving of religion as a private matter, as a relationship between one’s soul and one’s God, and therefore as a practice exercised in the church or synagogue or mosque rather than in the arena of political action. If, however, your religious beliefs take a more robust form than Locke’s and require that you labor to bring the world into conformity with God’s word and will, the Johnson amendment, or any other limitation on the free exercise of what you take to be your religious duty, will be seen as an unconstitutional interference by the state in the proper business of the church.

That’s how Erik Stanley, legal counsel and head of the Pulpit Initiative for the Alliance Defense Fund, sees it. In his reply to Lynn he insists that any law “that requires government agents to parse the words of a pastor’s sermon” in order to “determine when a pastor’s speech becomes too ‘political’” constitutes an “excessive …government entanglement with religion” and is on its face a violation of the separation of church and state. In other words, it is a violation of the separation of church and state for the state to inquire into whether a pastor is violating the separation of church and state.

This is not so odd an argument as it might first seem; for everything depends on just how religious activity is defined. If you assume, as Lynn does, a Lockean definition (religious belief is essentially private), separation means hands off in both directions. But if you assume, as Stanley does, a definition that demands corrective action when you see the world departing from godly principles, separation means hands off the church by the state and hands on the state by the church.

And that means that there is no way for Lynn and Stanley really to speak to one another because each begins with a different conception of the proper scope of religion. No court or legislature could adjudicate that difference, for if there is one thing everyone agrees on, it is that the state cannot specify what religion is or is not, cannot tell its citizens what should be the content of their faith. The First Amendment, invoked by both sides, cannot settle the question if there is total disagreement about what the question is.

For a moment I thought I could get clarity on this puzzle by assimilating it to my argument (in previous columns) about what is and is not appropriate behavior for college and university teachers. My position follows from the notion of the distinctiveness of tasks. If the point of academic inquiry is to interrogate diverse bodies of material with a view toward understanding their structure, history, intellectual affinities, etc., taking classroom time to make your students into good citizens or to improve their character or to move them in some political direction is a departure from that point and a blurring of the task’s distinctiveness. There is no limit, I contend, on the topics instructors can take up, but there is a limit on where they can take them. Instruction must stop at the water’s edge of politics and action in the world. Teaching isn’t preaching; the lectern should not be used as a pulpit.

But that last sentence makes clear why any analogy to what pastors should and should not do fails. Pastors are in the business of preaching; their lectern is a pulpit; and they are expected to exhort their parishioners to act in accordance with religious truths, not simply in the privacy of the home and church, but in the world. If in the judgment of a pastor the imperatives she urges on her flock are likely either to be weakened or made stronger by the election of a particular candidate, is she not obliged to declare herself on what is only superficially a political issue but is really a religious issue? Wouldn’t she be derelict in her duty if she declined to do so on the reasoning (which she would reject) that religious doctrine has no implications for what one does in the public sphere?

This at any rate is the position taken by those on Stanley’s side of the controversy. “We need to recognize,” says one commentator at One NewsNow.com, “that the gospel speaks to every area of life including what makes a just ruler and an unjust ruler.” No one disagrees with Stanley when he says that “pastors have a right to speak about biblical truths”; but the proposition clarifies nothing if there are diametrically opposed notions of what biblical truths are, if one party would confine biblical truths to doctrine and the profession of faith and the other insists that biblical truths carry with them public and political obligations we ignore at the peril of our souls.

The bottom line is that there is no rational or principled or constitutional resolution to this conflict. The resolution, if there is one, will have to be political. Either the Johnson amendment will be repealed or it won’t be. And when one or the other happens, the boundaries between church and state, at least with respect to this issue, will have been settled — for a while.

This discussion conflates two distinct questions. The first is whether political pluralism is compatible with comprehensive doctrines that reject pluralism. The second is whether intrusive regulation of tax-exempt entities is compatible with the notion of church/state separation. Prof. Fish is right about the first of these questions: political pluralism is something of an impossible ideal. About the second question: if regulation is a problem, the solution is to tax religious organizations like all others.

It should be remembered that being expected to pay taxes is not a form of persecution, and political advocacy is not the same as claiming authority within the state.

If people can be prosecuted for blasphemy, or if members of the clergy of a certain Church are ex officio members of the legislature or judiciary, or if taxes are used to promote the interests of a religious group, then there has ceased to be a separation of Church and state.

But if a pastor, from the pulpit, urges the congregation to take a particular course of action, that is just one citizen urging others to act in a particular way. If a comedian does the same thing, nobody would worry that the separation between comedy and the state was being undermined. Similarly, if the government told the New York Times what it could not publish, or what it was required to publish, that would be government interference with the press. But the fact that the New York Times has to pay taxes does not mean that the freedom of the press is in danger.

It has happened, at certain points in history, that people have had religious objections to paying certain taxes. If that were to happen, there would be an unavoidable clash between Church and State. But is that what is happening in this case? I sympathise with any Church that does not want a government parsing words to see whether they are too political or not. Religious doctrine is not, by its nature, apolitical. But if, under current American law, the price of the freedom to be political is that one has to (oh horror!) pay taxes, why aren’t churches prepared to pay that price? Perhaps someone with a better knowledge of religion in America could educate me on this.

We must remember that this issue is merely about taxing non-profits. It isn’t necessarily about religion at all. It’s not even that big a deal. We aren’t talking about whether the government should allow particular forms of speech; the only issue is what sort of organizations should be taxed.

Issues of taxation are always merely political decisions in Fish’s sense. We can debate whether to tax capital gains at a separate rate from earned income, or whether we tax alcohol or gasoline separately from food, or whether we have a flat or progressive income tax, and in none of these cases would we flatly undermine our liberal, democratic form of government should we choose one direction over another.

Fish is right if he means to say that the preservation of our form of government does not hinge on how we handle this issue.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

What part of “no law” is subject to more than one interpretation?

2. Government laws or rules that seek to abridge what Churches and their clergy can say or write violate every phrase of the First Amendment.

3. Exemption of religious organizations from taxation is a violation of that portion of the First Amendment that bars an establishment of religion. Such exemptions are, effectively, a contribution by Government to religion and creates a device by which the free exercise of religion can be manipulated. Religious organizations should account for their income and expenses and pay taxes in the same way as do individuals and other entities.

3. In assessing the scope and significance of this issue, it would have been helpful if Fish had provided us with information concerning the estimated gross income of religious organizations, in the form of contributions, returns on investments and appreciation of property values, as well as the estimated portion of that income that is used for charitable purposes other than the promotion of religion.

I have been dealing with this issue in the light of another tax exempt organization. There is a lot of mistaken understanding of this law.

The law is not about Preachers having political opinions, they, like any citizen, have the right to speak their minds and endorse political candidates, as private citizens. Where they cross the line is when they give the impression that the Church endorses the particular candidate. Endorsing a candidate from the pulpit gives the impression that somehow the entire organization or even worse, God, is in favor or against a particular candidate, which we know is impossible.

If the pastor of a church wants to come down from the pulpit to endorse a particular candidate, as a private citizen, he or she is completely within the law. The pastor can encourage his parishioners to express their opinions and discusss these matters. The law only becomes applicable when the pastor gives the impression that he or she is speaking for the entire organization.

The tax breaks given to nonprofits, including the religious, are a form of tax spending paid for by all other tax payers. Applying for tax exempt status is voluntary, and requires submission to the rules, including the Johnson amendment. If a church wishes to enter into politics, it is free to do so, but we tax payers are also free to decide not to subsidize that activity with tax breaks.

I’d would put it more forcefully than the other commenters – all that any preacher has to do is have his church pay taxes and s/he can endorse anyone and preach for anyone. This is not about an intellectual clash of worldviews, but one more bogus issue the right has trumped up in his will to power.

Fish makes a classic late 20th century liberal mistake here, confusing christianism for Christianity. Since he fails to distinguish between the two, he imputes to the christianists religious/spiritual motives that they simply don’t have. They are political actors who exploit the symbols of Christianity for purely secular purposes.

Of course these terms are difficult to pin down, but for the most part christianism is a lot like hardcore pornography – you know it when you see it. Clearly, endorsing John McCain – or any other political candidate – from the pulpit crosses the line.

I disagree with Scott Banks – our form of government does hinge on how we handle this issue. He, and Fish, fail to grasp just how influential and power-hungry the extreme right is. If congregations aren’t exactly captive audiences, I can still think of few situations for political propaganda as dangerously effective for believers as being told their salvation depends upon voting for a specific presidential candidate.

I disagree that there is no constitutional resolution of this conflict. The government has no right to in any substantive way punish any for the expression of political opinions. Would not everyone agree that a law that deleted your standard deduction if you denied global warming would be unconstitutional. I see no difference with removing a larger tax break from an organization because of what its chief officer says.

It is impossible for the government to offer a tax break to churches (because they are churches) without begin forced into impermissible distinctions of what is and what is not a religion, which I find in violation of the establishment clause. Separation of church and state means that the government relationship with any organization should not depend upon its claimed religious affiliation or purpose. The Supreme Court should overturn all religious based tax exemptions. Fat chance with the current court!

Those pastors are free to say what they want. They always have been. They just want special status – promote a candidate and be tax exempt. They want their cake and eat it too. This isn’t fair. All tax exempt entities should be treated the same. If you promote a political candidate, you pay taxes.

There is one simple solution to this: let the churches be taxed and let them preach what they please. Otherwise the government must necessarily get in the business of deciding what is and what is not a church.

The great irony of this debate is that Jesus himself advocated the separation of church and state. When questioned about whether Jews should pay taxes to Rome, he said “Render unto Caesar the things which are Caesar’s and unto God the things that are God’s.” (Matthew, 22:21). He clearly recognized that spiritual and political authority occupied separate spheres. Those Christians who argue for their religion taking a more active role in government seem confused about what it means to be a Christian.

Scott Banks is correct. Churches are not required to be non-profit organizations. By requesting “non-profit” status, they receive substantial financial subsidies from the government. Some of this is direct – in the form of waivers from local taxes even though the church enjoys local services (police, fire, road paving). Others are indirect as parishioners receive cash back from the government when the report their contributions to the church on their tax forms.

It is reasonable that any organization that receives huge government subsidies – whether it be a hospital, symphony, museum, soup kitchen, or church – should have restrictions on its involvement in the political process. We can debate what those are, where to draw the line, etc. But these restrictions are both reasonable and freely entered into by the churches in question.

This is because if any non-profit feels that this restriction is onerous, they merely need to pay for the services they enjoy and give up their subsidies.

As the first three posters have said, this has little to do with free speech; it’s about taxing non profits. Pastors, reverends, priests, rabbis, Buddhist monks, imams, community organizers, and all others can say what they want. They get tax-exempt status for doing good works (though they are not mandated to do anything), with the caveat at the center of this essay. Let them pay their taxes and exhort their followers all they want.

I’m surprised Fish made such a conflation (free speech and taxes) in the first place.

Interesting that Dr. Fish used the pronoun “she” when discussing what a pastor should or should not do. Most, if not all, of the pastors that seem keen to bring the altar into the political arena are men. As one who grew up with a women pastor and was married by another (two of five I’ve ever met,)I was happy he did that.

I greatly appreciate Stanley Fish’s analysis of this important issue that emerges directly out of one of the most turbulent periods in European history. Locke wrote as a philosopher who believed that religion had to be a private-not a public affair. He came to this conclusion because in his world, the public involvement of Christian religions in the converting of others by force to their creed had led to at least thirty years of religious warfare in France, the Netherlands, Belgium, and Great Britain. While the right of a government to tax a nonprofit organization or not is a straightforward question, advocating one person or another as “more Godly” from the pulpit leads directly to the conflict between the private and public sphere that Fish delineates. In this sense, what is at stake in this bill is far greater than what seems to be the case on the surface. Allowing Johnson’s IRS code amendment to lapse would mean that religion could enter the public, political sphere more openly. And this more public definition of the religious sphere could lead to the erosion of the line between the church and the state. European law is far less flexible on this point than American law. European citizens remember the bloody past, when priests and ministers did far more than advocate one candidate or another-they advocated the murder of one candidate or another-and said that that murder was God’s will. While this conflict seems to be mostly a conflict over semantics, in our modern world where men and woman are daily being killed over the question of who is more godly in the Middle East, the question of how to maintain the separation of church and state in a democracy takes on a deadly significance.

“But if a pastor, from the pulpit, urges the congregation to take a particular course of action, that is just one citizen urging others to act in a particular way. If a comedian does the same thing, nobody would worry that the separation between comedy and the state was being undermined.”

I could not disagree more. A pastor constitutes a church leader, further, a pulpit is almost always inside a (tax-exempted) church which is currently limited. Both of those combined do not amount to “Pass Go. Collect $200″ they do not cancel each other.

Fish obfuscates the key issue which is not the right of preachers to preach about politics, but about their claim to have a right to do so while being publicly subsidized via tax exemptions. There is no justification for demanding that we taxpayers subsidize their political speech, that’s what they are calling for and that is what is unacceptable. If they want to mix in electoral politics let them do so with taxed income just like the rest of us.

Provocative as usual, Prof. Fish, and especially timely. Apparently the issue just won’t go away in this most curious country of ours. To put the best possible spin on it, I can only suggest that a democracy constantly evolves; it is a living thing. As an atheist I am constantly put off by the role that religion plays in our political life. It strikes me as unconstitutional, but given the tenor of the present presidential campaign, this is not the time to argue.

The above comments, 1-3 are right on the money. Any business that collects money and employs people and but isn’t taxed as other businesses are taxed is, in effect, being subsidized by the rest of us.

We are happy when OUR church is exempt from taxes, but are we all really that happy that EVERY OTHER church is also exempt? The separation of church and state has too often been defined as giving religious organizations special status, exempting them from obeying laws other organizations must obey.

I am perfectly content that pastors should endorse candidates from the pulpit, as long as public money is not used to support them.

I think wise pastors don’t want their church to become a place where … well, let’s say you move to a new town and want to join a church — should the real question be: Is it a Republican or a Democratic church?

A conservative minister was interviewed a couple years back who spoke about how he had become disillusioned about his political activity. “The problem is,” he said, “when you mix religion and politics — you get politics.” Government does not become more religious: religion simply gets more political.

Cynics say that religion is chiefly about power and politics in the larger sense anyway.

Is a church chiefly 1) an advocacy group; or 2) a charitable group? If the former, they deserve no tax exempt status. If the latter, they should be required to refrain from advocacy if they want my tax money subsidizing them.

To begin, full disclosure: I was involved as a protester in the late ’60s, for civil rights,against the war in Viet Nam. These were not religious but political decisions, and ones for which I am not apologetic. I never spit on a member of our armed services and, coming from a family steeped in military tradition, would have been horrified by anyone who did. (By the by,those stories have been blown out of all proportion-there really wasn’t much spitting going on.) While I may not have known any of the Weather Underground,I did meet Fr. Dan Berrigan, his brother Phil, members of the Mary Knoll sisters and others whose faith and love of life caused them to take to the streets as well.And, while this was going on, I was a student at (an elite?liberal? certainly Ivy!) university in bucolic Ithaca, NY. Within the next decade I, too, became ordained and have served as an Episcopal priest for nearly thirty years. I have run succesfully for local political office. I am a registered voter, independent, and continue to be concerned about/interested in politics. Enough disclosure?

I have struggled with all the issues raised by Dr. Fish.

My congregations have included staunch Republicans and ardent Democrats. On Sunday mornings, and during the weeks between, I see them as families struggling, one like another, with economy, the loss of children, concern about the war. Those are pastoral issues. Their politics are not.

As for those pastors who have decided to throw the gauntlet down, my sense is that that is an abuse of the pulpit. I have no problem if they preach about the evils of war, or the need to be concerned about the indigent, or whatever social piece is available to make the larger point about the “kingdom” as something fundamentally different from the world as we experience it. Would it be better if we all worked for peace, justice, and forgiveness? Yep … However, I would not presume to say to my congregants, “You should vote this-way-or-that.”

Part of the issue here is what Dr. Fish calls “biblical truths.” There are none. There are matters of historical fact (Pilate was a governor, David was a king of Israel, there was someone named Jesus…)but fact and truth, if we are talking spiritually, are different matters. The fact is the bible is a collection of texts cobbled together over near 2,500 years, edited, redacted, revised, retranslated and rewritten time and again by people. It is not the inerrant “word of God”. I believe there are truths to be found in scripture, but that is a matter of faith, not fact.

As to taxation of 501 (c)(3) organizations, well, by definition they are not taxable in the ordinary way. And, if they provide services to the community commensurate with their resources, I see no reason they should be taxed. At the same time, the understanding that all religious organizations should be automatically awarded a 501(c)(3) designation might be (profitably!) examined. But again, that is a separate issue and perhaps should be a local one. Indeed, we have too many large churches on large properties serving small congregations with no community outreach.

A pastor can advocate for certain principals to his/her heart’s and soul’s desire. The only thing the IRS regulation covers is actually endorsing a specific candidate or urging congregants to vote for a specific candidate. The pastor can lay out the religious issues involved, and advocate for adherence to particular religious principals. S/he just can’t say, “vote for X”, or “if you vote for Y you are a sinner” without jeopardizing the tax deductions of contributors.

Religious bodies, and their leaders, face a choice. They can abide by what is really minimal limitation on what they specifically say, or they can start paying taxes (and their supporters can pay taxes on the money they contributed) just like the organizations that choose to advocate and don’t claim the tax exemption. These pastors are trying to have it both ways.

I write as a member of a congregation that has been involved in advocacy on various issues – war, desegregation, women’s rights, gay rights, to list a few – for many, many years. As often as our pastors have exhorted from the pulpit on the biblical basis for such advocacy, they have never endorsed a particular candidate.

And, frankly and bluntly, if a pastor has to say a specific candidate’s name to communicate the message to the people in the pews, s/he is simply not a very good preacher.

Just what are those “biblical truths” everyone agrees on? When a “truth” can be established, maybe then everyone can agree about what a pastor has a right to preach to those of us who think he/she should stay out of our business. Until then, let the preachers preach to those who are equally deluded.

As an evangelical, churchgoing Christian I am appalled that some pastors seem to want it both ways – exemption from taxes and the right to preach politics from the pulpit. I believe if they were to be asked, they would be highly indignant if Muslim imams could receive tax-exempt status while railing against an American president. So I agree that what it really comes down to is the tax exemption issue. If they accept the exemption, they must accept the legitimate limitations. If they want to preach politics, by all means, pay those taxes. On a personal note, as a pro-life Democrat swimming in a sea of Republicans every Sunday at church, I could not continue to attend if the pastor were to speak out against my candidate and challenge the legitimacy of my faith based on my political views. Coffee hour can be dangerous enough…

Exemption from taxation is a legl concept that can be sorted out by the courts. If pastors resort to political speech from the pulpit (as opposed to personal comments as individuls), they influence the many who tend to believe in the authority and wisdom of the God-selected person.

I would think that in this time of fiscal disruption, the IRS would be looking for revenue sources and these well-funded mega churches should be made to pay if the minister crosses the line. Appeals to the legal system would clarify whether political activity has occurred.

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Stanley Fish is a professor of humanities and law at Florida International University, in Miami. In the Fall of 2012, he will be Floersheimer Distinguished Visiting Professor at the Benjamin N. Cardozo School of Law. He has also taught at the University of California at Berkeley, Johns Hopkins, Duke University and the University of Illinois, Chicago. He is the author of 15 books, most recently “Versions of Antihumanism: Milton and Others”; “How to Write a Sentence”; “Save the World On Your Own Time”; and “The Fugitive in Flight,” a study of the 1960s TV drama. “Versions of Academic Freedom: From Professionalism to Revolution” will be published in 2014.